Justice Jayawickrema writes to ICC Sub Committee

Continued from last week

Following is the second part of the letter sent to Ms. Giannhi Magazzeni, Coordinator of the National Institutions Unit, Secretariat of the ICC, Palais des Nations, CH - 121 VGENEVE by Human Rights Commission of Sri Lanka Commissioner Justice D. Jayawickrema.

There are previous instances where the former President refused to give effect to such recommendation and sought amended recommendation e.g.: appointment to the Bribery and Corruption Commission and completely rejecting the nominees to the Elections Commission.

The criticism is levelled because there will be no charges of contempt and vested interests including the NGOs try to deceive the Donor Agencies and continue to adopt a policy of getting financial assistance for their existence with less service to the people.

However, the members of the public who complain of Human Rights violations continue to flood with their petitions before the Commission and seek redress and also satisfied with the recommendation and majority of such recommendations have been implemented by the relevant authorities.

They have full confidence on the independence and for the rightness of the decisions of the Commission. The disgruntled organisations make devious representations in order to seek more funds by misrepresenting facts to the donor agencies.

The Commission continues to maintain its independence in making its recommendations against the Government. The Secretary, Ministry of Public administration by Circular No. 17/2005 had issued instructions as follows:

“You are hereby informed that in the process of implementing the above functions by the Human Rights Commission, your institution should submit information to the said Commission with a sense of responsibility and that on receipt by you of the recommendations on the breach of Human Rights you should after obtaining the formal approval from the relevant authorities for implementing the said recommendation take necessary action to implement them.”

1. appointment of the Human Rights Commissioners of Sri Lanka

It is correct to State that the members of the Human Rights Commission should be appointed by the President of Sri Lanka on the recommendations of the Constitutional Council.

Unfortunately, the Constitutional Council is not functioning due to differences among the political parties in the Parliament. In fact the terms of office of the 3 Commissions in Sri Lanka. i.e.

The Public Service, Police Commission and the Human Rights Commission expired in the years 2005 and 2006. In the circumstances the President of Sri Lanka was helpless and on the grounds of necessity was compelled to appoint the three Commissions aforesaid.

If the appointments to the aforesaid Commissions were not made there would have been chaos and period of uncertainty in the country. All appointments, transfers and other related administrative steps to be taken by the aforesaid three Commissions will come to standstill resulting in great hardship and chaos to the civil society and the citizens of Sri Lanka.

It is under these circumstances that the President of Sri Lanka was compelled to appoint the aforesaid three Commissions.

We bring to the notice of International Co-ordinating Committee (ICC) sub-committee that under the provision of Section 3(2) of the Human Rights Commission Act No. 21 of 1996, the President is empowered to appoint members to the Commission not with standing, Section 3(2) of the aforesaid Act (vide the proviso). Act No. 21 is annexed herewith.

The said appointment of the members to the Human Rights Commission does not militate against the Paris Principles for the simple reason that the aforesaid members cannot be removed by the President of Sri Lanka at his will and pleasure.

The independence of the members of the Commission is guaranteed by the Section 4(1) of the aforesaid Act No. 21 of 1996 which read as follows:

“4(1) A member of the Commission may be removed of the office:

(a) - by the President if he -

i. Is adjudged an insolvent by a court of competent jurisdiction

ii. Engages in any paid employment outside the duties of his office, which in the opinion of the President, formed on the recommendation of the Prime Minister in consultation with the Speaker and the Leader of the Opposition, conflicts with his duties as a member of the Commission;

iii. Is unfit to continue in office by reason of infirmity of mind or body

iv. Is declared to be of unsound mind by a court of competent jurisdiction

v. Is convicted of an offence involving moral turpitude; or

vi. Absents himself from three consecutive meetings without obtaining leave of the Commission; or

(b) By an order of the President made after an address of Parliament supported by a majority of total number of members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehaviour or incapacity.

Provided however that no resolution for the presentation of such an address shall be entertained by the Speaker or placed on the Order Paper of Parliament, unless notice of such resolution is singed by not less than one-third of the total number of members of Parliament and sets out full particulars of the alleged misbehaviour or incapacity.

Thus it is apparent that the members of the Commission are completely independent. Their independence is further guaranteed by the Aforesaid Act.

Section 8 of the Human Rights Act No. 21 of 1996 provides that the salaries of the members of Commission shall be determined by Parliament and shall be charged on the Consolidated Fund and shall not be diminished during their terms of office. Most of the orders made by the Commission have been recommendation against the Government.

Under Section 7 quote Aforesaid Act

No at of proceeding of the Commission shall be deemed to be invalid by reason only of the instance of any vacancy among its members or defect in the appointment of any member thereof.”

The Commission is non political, none of its members are politicians or have been engaged in politics. Out of the five members three are retired judges of the Supreme Court, Court of Appeal and High Court.

The other two members are senior Attorneys-at-Law. The appointment process has not caused civil society in the country to question the constitutionality nor has it affected the credibility of the Commission for the simple reason that the Commission is mandated to inquire into complaints from the civil society regarding violation of the Human Rights.

The large number of applications entertained by the Commission and the many recommendations made by the Commission bear eloquent testimony to confidence reposed by the Civil Society on the Commission.

It is incorrect to state that the Commission has failed to issue its annual reports as required by the Paris Principles.

In fact the delegate from Sri Lanka who participated in the Geneva Conference in 2006 presented to the Secretariat, the annual report for the year 2004 to 2005 together with a summary of activities for the year 2006.

02. Follow up to 2000 cases of disappearances in July 2006

There had been four Presidential Commissions of inquiry appointed to inquire into missing persons during 1980-1999. The first three Presidential Commissions were appointed on zonal basis - e.g. Southern, Central and North Eastern Zones.

The fourth was an All Island Commission to inquire into complaints left not inquired by the Zonal Commissions.

Complaints received by three zonal Commission to inquire into complaints left not inquired by the Zonal Commissions.

Complaints received by three Zonal Commissions after closing date of application were not inquired by the All Island Commission as these cases did not come within the mandate of the 4th Commission, Eg. All Island Commission.

This was brought to the notice of the H.E. The former President and the previous Human Rights Commission was authorised to attend to them interims of the mandate of the Human Rights Commission by the Presidential Directive No. SP/6/N214/1947 dated 14th March 2006.

The number of disappearances reported as 16305 boiled down to 2010 after eliminating duplicates and on the responses received from complainants to a letter addressed to each of them by the Disappearances Data Base Project (DDB).

Here I quote from the final report of the Presidential Commission on Disappearances Chapter (VII page 46) “The Presidential Commission on inquiries are only ad hoc arrangements. Accordingly we recommend that the Human Rights Commission Act be amended to enable it to inquire these complaints or any subsequent instances of this nature brought to their notice”.

I quote Section 10(a) of the HRC Act the functions of the Commission shall be “to inquire into and investigate, complaints regarding procedures, with a view to ensuring compliance with the provisions of the Constitution relating to Fundamental Rights and to promoting respect for and observances of fundamental rights.”

However the Human Rights Commission took over the inquiries on the Presidential Directive No. SP/6/N/214/1947 of 14th March 2006 although he Commission was non existent during period of alleged incidents.

The Committee appointed by the Human Rights Commission conducted proceedings from 6th November 2006 to 15th October 2007. During this period, the committee sent out summons to all 2210 complaints responded only about 650 complainants from all parts of the country including North and East.

Those who could not come before the Committee submitted affidavits.

The Committee could conclude inquiries upto 29.04% of the 2210 cases. There were a large number of absentees due to various reasons such as security situation, financial constraints and inability to travel due to old age and ill health.

The Committee submitted its report on 15th October 2007 is being studied by the Commission as well as Presidential Secretariat

3. Issue of Annual Reports

Annual Reports up to end of 2005 have been issued. The Report for the year 2006 is in the final stage of preparation. The Problem is translation of all Annual Reports into Sinhala and Tamil and it is a compulsory requirement for presentation to Parliament. However all statistics are submitted to International organizations and government institution when called for

b. The Commission taking into consideration of the prevailing situation in the country and acts immediately on the complaints received by operation of a 24 hour Hot Line to report on arrest, detention and torture or any type of human rights violation. No complaints or criticism is levelled by the affected parties on the question of inaction by the Commission.

The Commission’s officials undertake visits to police stations and places of Detention. In the year 2007, 560 such visits have been undertaken, and approximately about 100 visits by the Head Office and Regional Offices to ensure that there is no torture and detention of suspects more than 24 hours in custody without producing before a Magistrate.

With regard to disappearances a member of the Commission, a Retired High Court Judge is presiding over disappearances on the basis of a Presidential Commission.

He has reported that the majority of disappearances reported are of mischievous nature and over 95% of the disappeared had returned home. But such returns are not reported back to the Commission; such returns are divulged at the time of inquiry.

The figures reported are as follows:

No. of kidnappings reported : 352

Returnees : 179

No. of Disappearances : 2241

Returnees : 1703

Reported Killings : 386

The Disappearances effected by the terrorist groups are reported as “unknown”. The so called NGOs are creating the problem by making a mountain of a mole-hill for their survival and existence to accrue more and more financial assistance and other benefits.

Whoever who had been absent for interviews have been given adequate opportunities to present themselves again if necessary.

All foreign visitors have been received by the Commission. Some invitees and NGOs had failed to respond to our requests for interviews by keeping away from such discussions.

The credibility of the Commission is well accepted by the Petitioners and they continue to seek redress from the Commission by making petitions at least 100 a day.

Since 2003 the Commission had issued 767 recommendations and a total of 202 recommendations issued by the Commission in 1997, have not been implemented by relevant authorities.

Ensuring pluralism

The Commission consist of 5 members, 1 Tamil, Muslim and 3 Sinhalese who are members of the legal fraternity. The Board consists of retired judges and practising lawyers who have a close relationship with the civil society.

The offices come into contact with the Public and Corporation officials and members from the civil society. The Commission while conducting seminars and training programmes educate officials and also the vulnerable groups as participants of such training programmes.

The Board officials are engaged as Resource personnel when requests are so made. The Board officials participate at seminars workshops if invited.

To be continued